Last month, EFF moved to intervene in a patent case in order to unseal records we believe have been improperly kept from the public. Yesterday, the court granted EFF’s motion to intervene, and in doing so, rejected a troubling argument being put forth by the patent owner.
The case is Blue Spike v. Audible Magic. As we noted in our blog post last month, numerous documents, including at least three court opinions, have been completely withheld from the public. The sealed documents are highly substantive, and from what we can gather, would help the public better understand what, exactly, Blue Spike claims to have invented.
EFF moved to intervene in the case, arguing that the public has a right to know what arguments and evidence are being presented to the court. This is true for all court records, unless a party can show that disclosure harms them in a particular way that overrides the public’s right of access, something that hasn’t occurred in this case.
In response, Blue Spike argued that EFF had no “standing” to ask the court to unseal documents. That is, Blue Spike argued that a desire to access documents was not enough to allow the court to hear EFF’s claim. If it were, Blue Spike argued, that would mean that anyone could intervene in order to get documents unsealed.
Blue Spike also argued that it was improper for EFF to publicly “malign” its patent (which we selected as September 2014’s Stupid Patent of the Month). It even complained that EFF had “admitted it intends to change the patent landscape.” But the fact that Blue Spike does not like EFF’s speech or our policy goals has no bearing on our First Amendment right to access court proceedings. It is crucial that the public have access to court records to properly analyze and comment on litigation. This is true whether one is a staunch supporter or a strong critic of the current system. Access is guaranteed to the entire public.
Blue Spike is not the first, and it is likely not the last, to argue that members of the public can’t challenge the confidentiality of the courts. But what Blue Spike and others who make this argument fail to understand is that the public presumptively have rights to access court documents and the law makes clear they shouldn’t have to intervene in order to access them. Unfortunately, too often we see courts allowing parties to seal documents without making the parties demonstrate that sealing is appropriate. This improperly places the burden on the public to seek unsealing when the burden should be on the parties to seal.
Public access [to judicial records] serves to promote trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of its fairness.
We’re glad the court granted EFF’s motion and rejected Blue Spike’s argument. But we shouldn’t have had to intervene in the first place.